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FORM N-4, ITEM 24(b)(8.66)
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Form of Selling Group Agreement between AUL, OAS &
Victory Capital Advisers, Inc.
VICTORY CAPITAL ADVISERS, INC., DISTRIBUTOR
FORM OF SELLING GROUP MEMBER AGREEMENT
Ladies and Gentlemen:
As the distributor of the shares ("Shares") of each investment company portfolio
(each, a "Fund"), of the investment company or companies covered hereunder
(collectively, "Company"), Victory Capital Advisers, Inc. ("Distributor") hereby
invites you to participate in the selling group on the following terms and
conditions. The Funds existing as of the date hereof are listed on Appendix A.
In this letter, the terms "we," "us," and similar words refer to the
Distributor, and the terms "you," "your," and similar words refer to the
intermediary executing this agreement, including its associated persons.
1. SELLING GROUP MEMBER. You hereby represent that you are properly
qualified under all applicable federal, state and local laws to engage in
the business and transactions described in this agreement. In addition,
you agree to comply with the rules of the Financial Industry Regulatory
Authority ("FINRA") (formerly the National Association of Securities
Dealers, Inc. ("NASD")) as if they were applicable to you in connection
with your activities under this agreement. You agree that it is your
responsibility to determine the suitability of any Fund Shares as
investments for your customers, and that we have no responsibility for
such determination. You further agree to maintain all records req-~ired
by Applicable Laws (as defined below) or that are otherwise reasonably
requested by us relating to your transactions in Fund Shares.
2. QUALIFICATION OF SHARES. We will make available to you a list of the
states or other jurisdictions in which Fund Shares are registered for
sale or are otherwise qualified for sale, which may be revised from time
to time. You will make offers of Shares to your customers only in those
states, and you will ensure that you (including your associated persons)
are appropriately licensed and qualified to offer and sell Shares in any
state or other jurisdiction that requires such licensing or qualification
in connection with your activities.
3. ORDERS. All orders you submit for transactions in Fund Shares shall
reflect orders received from your customers or shall be for your account
for your own bona fide investment, and you will date and timestamp your
customer orders and forward them promptly each day and in any event prior
to the time required by the applicable Fund prospectus (the "Prospectus,"
which for purposes of this agreement includes the Statement of Additional
Information incorporated therein). 'As agent for your customers, you
shall not withhold placing customers' orders for any Shares so as to
profit yourself (or your customers) as a result of such withholding. You
are hereby authorized to: (i) place your orders directly with the
relevant Company for the purchase of Shares and (ii) tender Shares
directly to the Company for redemption, in each case subject to the terms
and conditions set forth in the Prospectus and any operating procedures
and policies established by us from time to time. All purchase orders you
submit are subject to acceptance or rejection, and we reserve the right
to, and the Board of Trustees of the Company (the "Board") may at any
time, suspend or limit the sale of Shares. You are not authorized to make
any representations concerning Shares of any Fund except such
representations as are contained in the Prospectus and in such
supplemental written information that we may provide to you with respect
to a Fund. All orders that are accepted for the purchase of Shares shall
be executed at the next determined public offering price per share (i.e.,
the net asset value per share plus the applicable sales ioad, if any) and
all orders for the redemption of Shares shall be executed at the next
determined net asset value per share and subject to any applicable
redemption fee, in each case as described in the Prospectus.
4. COMPLIANCE WITH APPLICABLE LAWS; DISTRIBUTION OF PROSPECTUS AND REPORTS;
CONFIRMATIONS. In connection with its respective activities hereunder,
each party agrees to abide by the Conduct Rules of the NASD/FI N RA and
all other rules of self-regulatory organizations of which the relevant
party is a
member, as well as all laws, rules and regulations, including federal and
state securities laws, that are applicable to the relevant party (and its
associated persons) from time to time in connection with its activities
hereunder ("Applicable Laws"). You are authorized to distribute to your
customers the current Prospectus, as well as any supplemental sales
material received from us (on the terms and for the period specified by
us or stated in such material). You are not authorized to distribute,
furnish or display any other sales or promotional material relating to a
Fund without our written approval, but you may identify the Funds in a
listing of mutual funds available through you to your customers. Unless
otherwise mutually agreed in writing, you shall deliver or cause to be
delivered to each customer who purchases shares of any Funds from or
through you, copies of all annual and interim reports, proxy solicitation
materials, and any other information and materials relating to such Funds
and prepared by or on behalf of the Funds or us. If required by Rule 1
Ob-1 0 under the Securities Exchange Act or other Applicable Laws, you
shall send or cause to be sent confirmations or other reports to your
customers containing such information as may be required by Applicable
Laws.
5. SALES CHARGES AND CONCESSIONS. On each purchase of Shares by you (but not
including the reinvestment of any dividends or distributions), you shall
be entitled to receive such dealer allowances, concessions, sales charges
or other compensation, if any, as may be set forth in the Prospectus.
Sales charge reductions and discounts may be available as provided in the
Prospectus. To obtain any such reductions, the Company or Distributor
must be notified promptly when a transaction or transactions would
qualify for the reduced charge and you must submit information that is
sufficient (in the discretion of the Company and/or us) to substantiate
qualification therefor. The foregoing shall include advising us of any
Letter of Intent signed by your customer or of any Right of Accumulation
available to such customer. If you fail to so advise us, you will be
liable for the return of any commissions plus interest thereon. Rights of
accumulation (including rights under a Letter of Intent) are available,
if at all, only as set forth in the Prospectus, and you authorize any
adjustment to your account (and will be liable for any refund) to the
extent any allowance, discount or concession is made and the conditions
therefor are not fulfilled. Each price is always subject to confirmation,
and will be based upon the net asset value next determined after receipt
of an order that is in good form. If any Shares purchased are tendered
for redemption or repurchased by the Fund for any reason within seven
business days after confirmation of the purchase order for such Shares,
you agree to promptly refund the full sales load or other concession and
you will forfeit the right to receive any compensation allowable or
payable to you on such Shares. We reserve the right to waive sales
charges. You represent to us that you are eligible to receive any such
sales charges and concessions paid to you by us under this section.
6. TRANSACTIONS IN FUND SHARES. With respect to all orders you place for the
purchase of Fund Shares, unless otherwise agreed, settlement shall be
made with the Company within three (3) business days after acceptance of
the order. If payment is not so received or made, the transaction may be
cancelled. In this event or in the event that you cancel the trade for
any reason, you agree to be responsible for any loss resulting to the
Funds or to us from your failure to make payments as aforesaid. You shall
not be entitled to any gains generated thereby. You also assume
responsibility for any loss to a Fund caused by any order placed by you
on an "as-of' basis subsequent to the trade date for the order, and will
immediately pay such loss to the Fund upon notification or demand. Such
orders shall be acceptable only as permitted by the Company and shall be
subject to the Company's policies pertaining thereto, which may include
receipt of an executed Letter of Indemnity in a form acceptable to us
prior to the Company's acceptance of any such order.
7. ACCURACY OF ORDERS; CUSTOMER SIGNATURES. You shall be responsible for the
accuracy, timeliness and completeness of any orders transmitted by you on
behalf of your customers by any means, including wire or telephone. In
addition, you agree to guarantee the signatures of your customers when
such guarantee is required by the Company and you agree to indemnify and
hold harmless all persons, including us and the Funds' transfer agent,
from and against any and all loss, cost, damage or expense suffered or
incurred in reliance upon such signature guarantee.
8. INDEMNIFICATION. You agree to indemnify us and hold us harmless from and
against any claims, liabilities, expenses (including reasonable
attorney's fees) and losses resulting from (i) any failure by you to
comply with Applicable Laws in connection with activities performed under
this agreement, or
(ii) any unauthorized representation made by you concerning an investment
in Fund Shares. We agree to indemnify you and hold you harmless from and
against any claims, liabilities, expenses (including reasonable attorneys
fees) and losses resulting from (i) any failure by us to comply with
Applicable Laws in connection with our activities as Distributor under
this agreement, or (ii) any untrue statement of a material fact set forth
in a Fund's Prospectus or supplemental sales material provided to you by
us (and used by you on the terms and for the period specified by us or
stated in such material), or omission to state a material fact required
to be stated therein to make the statements therein not misleading;
provided, however, that the indemnification in this clause (ii) shall be
limited to indemnification actually received by us as Distributor from
the Funds, except to the extent that the relevant claims, liabilities,
expenses and losses result from our own failure to exercise reasonable
care in the preparation or review of the Prospectus or such other
materials.
9. MULTI-CLASS DISTRIBUTION ARRANGEMENTS. You understand and acknowledge
that the Funds may offer Shares in multiple classes, and you represent
and warrant that you have established compliance procedures designed to
ensure that the retirement plans to whom you offer the Funds are made
aware of the terms of each available class of Fund Shares being offered
by you to the particular retirement plan.
10. ANTI-MONEY LAUNDERING COMPLIANCE. Each party to this agreement
acknowledges that it is a financial institution subject to the USA
Patriot Act of 2001 and the Bank Secrecy Act (collectively, the "AML
Acts"), which require, among other things, that financial institutions
adopt compliance programs to guard against money laundering. Each party
represents and warrants that it is in compliance and will continue to
comply with the AML Acts and applicable rules thereunder ("AML Laws"),
including NASD/FINRA Conduct Rule 3011, in all relevant respects. The
parties agree to cooperate with one another to satisfy AML due diligence
policies of the Company and Distributor, which may include annual
compliance certifications and periodic due diligence reviews and/or other
requests deemed necessary or appropriate by us to ensure compliance with
AML Laws.
11. PRIVACY. The parties agree that any Non-public Personal Information, as
the term is defined in Regulation S-P ("Reg S-P") of the Securities and
Exchange Commission that may be disclosed hereunder is disclosed for the
specific purpose of permitting the other party to perform the services
set forth in this agreement. Each party agrees that, with respect to such
information, it will comply with Reg S-P and that it will not disclose
any Non-Public Personal Information received in connection with this
agreement to any other party, except to the extent required to carry out
the services set forth in this agreement or as otherwise permitted by
law.
12. SERVICE FEES. Subject to and in accordance with the terms of each
Prospectus and the Distribution and Service Plan, if any, adopted by
resolution of the Board pursuant to Rule 12b-1 ("12b-1 Pian") under the
Investment Company Act of 1940 (the "1940 Act"), and/or the Service Plan,
if any, adopted by resolution of the Board, but not pursuant to said Rule
12b-1 ("non-12b-1 Pian"), we may pay appropriately qualified parties with
which we have entered into an agreement in substantially the form annexed
hereto as Appendix B or such other form as may be approved from time to
time by the Board (the "Fee Agreement") such fees as may be determined in
accordance with such Fee Agreement for shareholder or administrative
services, as described therein.
13. ORDER PROCESSING/TRADING ABUSE. You represent that you have reviewed your
policies and procedures to ensure that they are adequate with respect to
preventing violations of law (including rule 22c-1 0000 Xxx) and
prospectus requirements related to timely order-taking and market timing
activity, and you hereby provide the confirmation set forth on Appendix C
hereto. You represent that you will be responsible for the collection and
payment to the Company of any Redemption Fees based upon the terms
outlined in the Company's prospectus.
You acknowledge that certain practices relating to the purchase and
redemption of Shares, such as, but not limited to, market timing,
short-term trading, excessive trading, failure to comply with or
otherwise attempting to circumvent break point restrictions, redemption
fee requirements, and/or the rules on waiving sales charges, as set forth
in the applicable Fund Prospectus, and such other, similar activities or
practices that may be identified from time to time by any Fund and
communicated to you
by us in writing (collectively, "Trading Abuses") may be harmful to the
Funds and their shareholders. You agree to assist us and the Funds in
enforcing reasonable procedures adopted by or on behalf of the Funds to
reduce, discourage or eliminate Trading Abuses in the Funds' Shares in
order to reduce or eliminate the adverse effects of Trading Abuses on the
Funds and the Funds' shareholders.
14. AMENDMENTS. This agreement, including any Appendix, may be amended from
time to time by the following procedure. We will mail a copy of the
amendment to you at your address shown below. If you do not object to the
amendment within fifteen (15) days after its receipt, the amendment will
become a part of this agreement. Your objection must be in writing and be
received by us within such fifteen (15) days. All amendments shall be in
writing and except as provided above shall be executed by both parties.
15. TERMINATION. This agreement will terminate automatically upon the
termination of the Distribution Agreement between us and the Funds. This
agreement may be terminated by either party, without penalty, upon 60
days' prior written notice to the other party. Any unfulfilled
obligations hereunder, and all obligations of indemnification, shall
survive the termination of this agreement.
16. NOTICES. All notices and communications to us shall be sent to us at 0000
Xxxxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxx, Xxxx 00000, Attn: Broker Dealer
Administration, or at such other address as we may designate in writing.
All notices and other communication to you shall be sent to you at the
address set forth below or at such other address as you may designate in
writing. All notices required or permitted to be given pursuant to this
agreement shall be given in writing and delivered by personal delivery,
by postage prepaid mail, or by facsimile or similar means of same-day
delivery, with a confirming copy by mail.
17. AUTHORIZATION. Each party represents to the other that all requisite
corporate proceedings have been undertaken to authorize it to enter into
and perform under this agreement as contemplated herein, and that the
individual that has signed this agreement below on its behalf is a duly
elected officer that has been empowered to act for and on behalf of such
party with respect to the execution of this agreement.
18. OMNIBUS TRADES. In the event you provide any services with respect to
Fund Shares held or owned by or for the benefit of your customers where
you place trades with respect to Fund Shares on an omnibus basis rather
than on an individual, fully disclosed basis, then you must enter into a
Third Party Administration Service Agreement with the Company, in such
form as you and the Company agree, in addition to the terms and
provisions of this Agreement. Unless you have entered into an agreement
covering such matter with the Company, by placing any order for purchase
or redemption of Fund Shares hereunder on an omnibus basis, you will be
deemed to have agreed to be bound by and comply with the terms and
provisions of the Third Party Administration Service Agreement in the
form annexed hereto as Appendix D, and the Company, by its signature
thereon, agrees likewise to be so bound.
19. MISCELLANEOUS. This agreement supersedes any other agreement between the
parties with respect to the offer and sale of Fund Shares and other
matters covered herein. The invalidity or unenforceability of any term or
provision hereof shall not affect the validity or enforceability of any
other term or provision hereof. This agreement may be executed in any
number of counterparts, which together shall constitute one instrument.
This agreement shall be governed by and construed in accordance with the
laws of the Commonwealth of Massachusetts without regard to conflict of
laws principles, and shall bind and inure to the benefit of the parties
hereto and their respective successors and assigns.
* * * *
If the foregoing corresponds with your understanding of our agreement, please
sign this document and the accompanying copies thereof in the appropriate space
below and return the same to us, whereupon this agreement shall be binding upon
each of us.
VICTORY CAPITAL ADVISERS, INC.
Print Name: Xx. xxxxxx Xxxxxxxxx
--------------------
Title: President
---------
AGREED TO AND ACCEPTED:
AMERICAN UNITED LIFE INSURANCE COMPANY
Print Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
Date: 6/1/12
Address of Group Member: Xxx Xxxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
Agreed and Accepted:
OneAmerica Securities, Inc
Print Name: Xxxxxxx X. Xxxxxx
Title: President
Date: 6/1/12
Address of Group Member
000 X. Xxxxxxx Xxx., XX Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
The Victory Portfolios
Victory Capital Advisers, Inc., Distributor
APPENDIX A
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FUNDS CUSIP SYMBOL SHAREHOLDER
NUMBER SERVICING OR
t2B-t
----------------------------------------------------
Value Fund - A 926464868 SVLSX 25 bps
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Value Fund - R 926464249 VVFGX 50 bps
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Value Fund - I 00000X000 VVFIX 0 bps
----------------------------------------------------
Diversified Stock 926464603 SRVEX 25 bps
Fund - A
----------------------------------------------------
Diversified Stock 926464421 GRJNX 50 bps
Fund - R
----------------------------------------------------
Diversified Stock 00000X000 VDSIX 0 bps
Fund - I
----------------------------------------------------
Stock Index 926464850 SSTIX 15 bps
Fund - A
----------------------------------------------------
Stock Index 926464355 VINGX 25 bps
Fund - R
----------------------------------------------------
Established Value 926464231 VETAX 25 bps
Fund - A
----------------------------------------------------
Established Value 926464371 GETGX 50 bps
Fund - R
----------------------------------------------------
Established Value 92646A83I VEVIX 0 bps
Fund - I
----------------------------------------------------
Special Value 926464843 SSVSX 25 bps
Fund - A
----------------------------------------------------
Special Value 926464264 VSVGX 50 bps
Fund - R
----------------------------------------------------
Special Value 00000X000 VSPIX 0 bps
Fund - I
----------------------------------------------------
Small Company 926464835 SSGSX 25 bps
Opportunity
Fund - A
----------------------------------------------------
Small Company 926464389 GOGFX 50 bps
Opportunity
Fund - R
----------------------------------------------------
Small Company 00000X000 VSOIX 0 bps
Opportunity
Fund - I
----------------------------------------------------
Large Cap Growth 00000X000 VFGAX 25 bps
Fund - A
----------------------------------------------------
Large Cap Growth 00000X000 VFGRX 50 bps
Fund - R
----------------------------------------------------
Large Cap Growth 00000X000 VFGIX 0 bps
Fund - I
----------------------------------------------------
International 00000X000 VlAFX 25 bps
Fund - A
----------------------------------------------------
International 00000X000 VIIFX 0 bps
Fund - I
----------------------------------------------------
International 00000X000 VISFX 25 bps
Select Fund - A
----------------------------------------------------
International 00000X000 VISIX 0 bps
Select Fund - I
----------------------------------------------------
Global Equity - A 00000X000 VPGEX 50 bps
----------------------------------------------------
Global Equity - I 00000X000 VPGYX 0 bps
----------------------------------------------------
Balanced Fund - A 926464876 SBALX 25 bps
----------------------------------------------------
Balanced Fund - R 926464272 VBFGX 50 bps
----------------------------------------------------
Balanced Fund - I 00000X000 VBFIX 0 bps
----------------------------------------------------
Investment Grade 926464538 SBFCX 25 bps
Iconvertible
Fund - A
----------------------------------------------------
Investment Grade 92646A78I VICIX 0 bps
Ironvertible
Fund - I
----------------------------------------------------
JCore Bond Index 926464819 SIMIX 25 bps
Fund - A
----------------------------------------------------
JCore Bond Index 00000X000 VCBIX 0 bps
Fund - I
----------------------------------------------------
Fund For 926464751 IPFIX 25 bps
Income - A
----------------------------------------------------
Fund For 926464397 GGIFX 25 bps
Income - R
----------------------------------------------------
Fund For 00000X000 VFFIX 0 bps
Income - I
----------------------------------------------------
APPENDIX B
THE VICTORY PORTFOLIOS
VICTORY CAPITAL ADVISERS, INC., DISTRIBUTOR
SERVICE FEE AGREEMENT
Ladies and Gentlemen:
This Fee Agreement ("Agreement") confirms our understanding and agreement with
respect to payments to be made to you pursuant to any 12b-1 Plan or non-12b-1
Plan (each, a "Pian") and together, the "Plans") in accordance with the Selling
Group Member Agreement between you and us (the "Selling Agreement"), which
entitles you to serve as a member of the selling group for certain Funds for
which we serve as Distributor. Capitalized terms used but not defined herein
shall have the respective meanings set forth in the Selling Agreement.
1. From time to time during the term of this Agreement, we may make payments to
you pursuant to the Plans. You agree to furnish shareholder and/or
administrative services to your customers who invest in and own Fund Shares,
including, but not limited to, answering routine inquiries regarding the Funds,
processing shareholder transactions, and providing other shareholder services
not otherwise provided by a Fund's transfer agent to your customers. With
respect to such payments to you, we shall have only the obligation to make
payments to you after, for as long as, and to the extent that, we receive from
the Fund an amount equivalent to the amount payable to you. The Fund or us, as
Distributor, each reserves the right, without prior notice, to suspend or
eliminate payments under the Plans or other compensation to you by amendment,
sticker or supplement to the then-current Prospectus of the Fund.
2. Any such fee payments shall reflect the amounts described in a Fund's
Prospectus, but in any event shall not exceed the amounts permitted by the
applicable Plan. Payments will be based on the dollar amount of Fund Shares
which are owned by those customers of yours whose records, as maintained by the
Funds or the transfer agent, designate your firm as the intermediary of record
or is agreed to by us and the intermediary of record. No such fee payments will
be payable to you with respect to shares purchased by or through you and
redeemed by the Funds within seven business days after the date of confirmation
of such purchase. You represent that you are eligible to receive any such
payments made to you under the Plans.
3. You agree that all activities conducted under this Agreement will be
conducted in accordance with the Prospectus, as well as all applicable state and
federal laws, including the Investment Company Act of 1940 (the "1940 Act"). You
represent, warrant and covenant that the receipt by you of any payment made
pursuant to this Agreement is not a violation of any applicable laws, rules or
regulations, including, without limitation, the Employee Retirement I ncome
Security Act of 1974, as amended, and the rules and regulations promulgated
thereunder. You agree to indemnify and hold harmless us, each Fund, and our own
and each Fund's directors, trustees, officers and employees (the "Indemnified
Parties") from and against any and all costs, losses, damages, liabilities and
expenses, including, without limitation, reasonable attorneys' fees, that may
arise or be incurred by the Indemnified Parties, arising from or attributable to
any breach of the foregoing representation, warranty and covenant. Each receipt
by you of such a payment shall be deemed to be a reaffirmation by you of such
representation, warranty and covenant.
4. At the end of each month (or quarterly, upon request), you shall furnish us
with a written report describing the amounts payable to you pursuant to this
Agreement and the purpose for which such amounts were expended. We shall provide
quarterly reports to the Funds' Board of amounts expended pursuant to the Plans
and the purposes for which such expenditures were made. You shall furnish us
with such other information as shall reasonably be requested by us in connection
with our reports to the Board with respect to the fees paid to you pursuant to
this Agreement.
7
5. Unless sooner terminated, this Agreement shall continue automatically for
successive annual periods, provided its continuation is specifically approved at
least annually in the manner described in Item 8 below or by a vote of a
majority of the outstanding voting securities of the Company (as defined in the
1940 Act). This Agreement may be terminated, with respect to one or more Funds,
without penalty, by either of us, upon sixty days' prior written notice to the
other party. In addition, this Agreement may be terminated by a vote of a
majority of the I ndependent Trustees of the Company as defined in Item 8 below.
I n addition, this Agreement will be terminated automatically with respect to
any Fund (i) in the event it is assigned by you or (ii) upon a termination of
the relevant Plan or the Selling Agreement, if a Fund closes to new investments,
or if our Distribution Agreement with any Fund terminates.
6. This Agreement may be amended by us from time to time by the following
procedure. We will mail a copy of the amendment to you at your address shown
below. If you do not object to the amendment within fifteen (15) days after its
receipt, the amendment will become a part of this Agreement. Your objection must
be in writing and be received by us within such fifteen days. You understand and
agree that any Plan may be amended or terminated by the Board at any time
without your consent and that we may amend this Agreement accordingly to reflect
the same and you will be deemed to agree to such amendment by your acceptance of
any further payment we make to you pursuant to the Plan.
7. This Agreement shall become effective as of the date when it is executed and
dated by us below. This Agreement and all the rights and obligations of the
parties hereunder shall be governed by and construed under the laws of the
Commonwealth of Massachusetts.
8. This Agreement has been approved by vote of a majority of (i) the Company's
Board of Trustees and (ii) those Trustees who are not "interested persons" (as
defined in the 0000 Xxx) and have no direct or indirect financial interest in
this Agreement ("Independent Trustees"), cast in person at a meeting called for
the purpose of voting on such approval.
9. All notices and other communications shall be given as provided in the
Selling Agreement.
If the foregoing corresponds with your understanding of our agreement, please
sign this document and the accompanying copies thereof in the appropriate space
below and return the same to us, whereupon this agreement shall be binding upon
each of us.
VICTORY CAPITAL ADVISERS, INC.
Print Name: Xx. xxxxxx Xxxxxxxxx Title: President
-------------------- ---------
AGREED TO AND ACCEPTED:
AMERICAN UNITED LIFE INSURANCE COMPANY
Print Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
Date: 6/1/12
Address of Group Member: Xxx Xxxxxxxx Xx.
Xxxxxxxxxxxx, XX 00000
Agreed and Accepted:
OneAmerica Securities, Inc
Print Name: Xxxxxxx X. Xxxxxx
Title: President
Date: 6/1/12
Address of Group Member
000 X. Xxxxxxx Xxx., XX Xxx 0000
Xxxxxxxxxxxx, XX 00000-0000
APPENDIX C
TO: VICTORY CAPITAL ADVISERS, INC. AS DISTRIBUTOR
OF THE VICTORY PORTFOLIOS
CONFIRMATION
As a member of the selling group for the Shares of the above-referenced Funds,
and pursuant to the terms of our Selling Agreement, we hereby certify to you
that we will at all times comply with (i) the provisions of our Selling
Agreement related to compliance with all applicable rules and regulations; and
(ii) the terms of each registration statement and prospectus for the Funds.
We have performed a review of our internal controls and procedures to ensure
that such controls and procedures are adequate to (i) prevent the submission of
any order received after the deadline for submission of orders in each day that
are eligible for pricing at that day's net asset value per share ("NAV"); and
(ii) prevent the purchase of Fund Shares by an individual or entity whose stated
objectives are not consistent with the stated policies of a Fund in protecting
the best interests of longer-term investors, particularly where such
customer-investor may be seeking market timing or arbitrage opportunities
through such purchase.
10
APPENDIX D
THIRD PARTY ADMINISTRATION SERVICE AGREEMENT
This Third Party Administration Service Agreement ("Agreement") confirms
the understanding and agreement between American United Life Insurance Company
("you" or "Administrator") and The Victory Portfolios, a Delaware business
trust, (the "Trust") on behalf of those investment company portfolios listed on
Appendix A to the Selling Group Member Agreement between Administrator and
Victory Capital Advisers, Inc. (the "Selling Agreement") with respect to trading
activities you conduct for any of your customers on an omnibus basis, rather
than on an individual, fully disclosed basis, as provided in the Selling
Agreement. Capitalized terms used but not defined herein shall have the
respective meanings set forth in the Selling Agreement;
The Trust is a registered management investment company.
Administrator provides administrative services comprised of, but not
limited to, recordkeeping, reporting and processing services (the
"Administrative Services") to funds and investment accounts which are made up of
the combined interests of numerous individuals or other beneficial owners (each,
a "Customer Account" and, collectively, the "Customer Accounts"), which may
include, without limitation, qualified employee benefit plans (each, a "Benefit
Plan" and, collectively the "Benefit Plans") subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"). Administrative Services for
each Customer Account include processing and transfer arrangements for the
investment and reinvestment of Customer Account assets in investment media
specified by an investment adviser, sponsor or administrative committee of the
Customer Account (a "Customer Account Representative") and, in some cases, upon
the direction of Customer Account beneficiaries (the "Beneficiaries"). The
Administrative Services are provided by Administrator under service agreements
with various Customer Accounts.
The Trust and Administrator desire to facilitate the purchase and
redemption of shares of the Funds (the "Shares") on behalf of the Customer
Accounts and their Beneficiaries through one or more accounts (not to exceed one
per Customer Account) in each Fund (individually an "Omnibus Account" and
collectively the "Omnibus Accounts"), subject to the terms and conditions of
this Agreement.
Accordingly, the parties hereto agree as follows:
1. PERFORMANCE OF SERVICES. In consideration of the fees or compensation
Administrator will receive from the Trust or other parties under other
agreements or arrangements, in connection with the services Administrator
performs under this Agreement, the sufficiency of which Administrator
acknowledges to be sufficient, Administrator agrees to perform the
administrative services and functions specified in Schedule A attached hereto
(the "Services") with respect to
11
Shares owned by Customer Accounts and held in the Omnibus Accounts.
2. PRICING INFORMATION. The Trust or its designee will furnish
Administrator, subject to availability, on each business day that the New York
Stock Exchange is open for business ("Business Day"), with (i) net asset value
information for each Fund as of the close ofregular trading (currently 4:00 p.m.
Eastern Time) on the New York Stock Exchange or at such other times at which a
Fund's net asset value is calculated as specified in such Fund's prospectus (the
"Close of Trading"), and (ii) dividend and capital gains information for each
Fund as it becomes available. The Trust or its designee shall provide such
information, subject to availability, to Administrator by 7:00 p.m. Eastern Time
on the same Business Day.
3. ORDERS; DISTRIBUTIONS. Upon the receipt of instructions from
Beneficiaries or Customer Account Representatives, Administrator shall date and
time stamp such instructions and shall transmit to the Trust or its designee
orders to purchase or redeem Shares for specified Omnibus Accounts on the basis
of those instructions. Administrator agrees that orders for net purchases or net
redemptions of Shares for each specified Omnibus Account derived from
instructions received in proper form by Administrator from Beneficiaries or
Customer Account Representatives prior to the Close of Trading on any given
Business Day shall be, if Fund/SERV orders, communicated via Fund/SERV to the
Trust or its designee on that Business Day, and if not Fund/SERV orders,
processed that same evening and transmitted to the Trust or its designee by 5
:00 a.m. Eastern Time on the next Business Day. With respect to Fund/SERV
orders, such orders shall settle in accordance with the Trust's profile within
Fund/SERV applicable to Administrator. With respect to non FundiSERV orders,
Administrator agrees that payment for net purchases of Shares attributable to
all orders executed for the Omnibus Accounts shall be wired by Administrator or
its designee to a custodial account designated by the Trust or its designee no
later than 3 :00 p.m. Eastern Time on the Business Day following the Business
Day that instructions in proper form are received and processed by
Administrator. If payment for a net purchase of Shares is not wired by the time
set forth in the preceding sentence, the Trust or its designee reserves the
right to cancel the trade. Subject to Administrator's compliance with the
foregoing, Administrator will be considered an agent for the Trust for the
limited purpose of receiving orders and transmitting those orders to the Trust,
and the Business Day on which instructions are received in proper form by
Administrator from Beneficiaries or Customer Account Representatives by the
Close of Trading will be the date as of which Shares will be purchased and
redeemed as a result of such instructions. Instructions received in proper form
by Administrator from Beneficiaries or Customer Account Representatives after
the Close of Trading on any given Business Day shall be treated as if received
on the next following Business Day. Dividends and capital gains distributions
will be issued in additional shares of the applicable Fund at net asset value in
accordance with each Fund's then-current prospectus. The Administrator and the
Trust agree that, in the event any provision of this Section 3 violates or
otherwise contravenes any applicable laws or regulations, then any such
provision shall become immediately null and void and of no further force or
effect, but only to the extent necessary to avoid such violation or
contravention and, furthermore, shall be deemed to be amended and will be
implemented to the extent necessary and appropriate to comply with said laws and
regulations.
4. MAINTENANCE OF RECORDS. The Trust or its designee and Administrator
shall maintain and preserve all records as required by law to be maintained and
preserved in connection with
12
providing the Services and in making Shares available to the Customer Accounts.
Upon the request of the Trust or its designee, Administrator shall provide
copies of all the historical records relating to transactions between the Funds
and the Customer Accounts, written communications regarding the Funds to or from
such Customer Accounts and other materials, in each case (i) as are maintained
by Administrator in the ordinary course of its business and in compliance with
laws and regulations governing transfer agents, and (ii) as may reasonably be
requested to enable the Trust or its representatives, including without
limitation its auditors or legal counsel, to (a) monitor and review the
Services, (b) comply with any request of a governmental body or self-regulatory
organization or a Customer Account, (c) verify compliance by Administrator with
the terms of this Agreement, (d) make required regulatory reports, or (e)
perform general customer supervision. Administrator agrees that it will permit
the Trust or such representatives to have reasonable access to its personnel and
records in order to facilitate the monitoring of the quality of the Services.
5. COMPLIANCE WITH LAWS. At all times, Administrator shall comply with all
laws, rules and regulations applicable to a transfer agent under the Federal
securities laws, including without limitation, requirements for delivery of
prospectuses (which term includes prospectus supplements). Whether or not
required by applicable law, Administrator shall deliver or arrange for the
delivery of prospectuses to Benefit Plans and to participants in
participant-directed Benefit Plans. Without limiting the foregoing:
Administrator will be responsible for compliance with Regulation SP, as adopted
by the Securities and Exchange Commission. Administrator will adopt and maintain
an anti-money laundering program in compliance with applicable laws and
regulations, including provisions for necessary currency transaction reporting,
detection of suspicious activities that could give rise to money laundering, and
knowing Administrator's customers. In connection with the services contemplated
in this Agreement, Administrator will identify sources of potential money
laundering and notify the Fund or its agent of any potential areas that would
reasonably raise concerns about the existence of money laundering or unlawful
activity.
6. REPRESENTATIONS WITH RESPECT TO FUNDS. Administrator and its agents and
representatives shall not make any representations concerning a Fund or the
Shares except those contained in the then current prospectus of such Fund, in
current Fund sales literature, or in a listing of funds offered by Administrator
that contains no other information than the names of the Funds.
7. RELATIONSHIP OF PARTIES. Except to the extent provided in Section 3
that the Administrator is the agent of the Trust for the limited purpose of
receiving orders and transmitting those orders to the Trust, it is understood
and agreed that all Services performed hereunder by Administrator shall be as an
independent contractor and not as an employee or agent of the Trust or its
designee, and none of the parties shall hold itself out as an agent of any other
party with the authority to bind such party.
8. PRICE ERRORS.
(a) NOTIFICATION. If an adjustment is required in accordance with a
Fund's then current policies on reimbursement ("Fund Reimbursement Policies") to
correct any error in the computation of the net asset value of Fund shares
("Price Error"), Trust or its designee shall notify the Administrator as soon as
practicable after discovering the Price Error. Notice may be
13
made via facsimile or via direct or indirect systems access and shall state the
incorrect price, the correct price and, to the extent communicated to the Fund's
other shareholders, the reason for the price change.
(b) UNDERPAYMENTS. Ifa Price Error causes an Omnibus Account to
receive less than the amount to which it otherwise would have been entitled,
Trust shall make all necessary adjustments (subject to the Fund Reimbursement
Policies) so that the Omnibus Account receives the amount to which it would have
been entitled.
(c) OVEMAYMENTS. Ifa Price Error causes an Omnibus Account to
receive more than the amount to which it otherwise would have been entitled, the
Administrator, when requested by Trust or its designee (in accordance with the
Fund Reimbursement Policies), shall use its best efforts to collect such excess
amounts from the applicable Customer Accounts.
(d) FUND REIMBURSEMENT POLICIES. Trust agrees to treat the
Administrator's customers no less favorably than Trust treats other Fund
shareholders in applying the provisions of paragraphs 8(b) and 8( c).
9. TERMINATION. This Agreement shall terminate
(a) at the option of any party, upon 60 days' advance written
notice to the other parties hereto; or
(b) in the event of a material breach that has not been cured
within ten days following a written notice of breach to the
breaching party.
10. INDEMNIFICATION. Administrator agrees to indemnify and hold harmless
the Trust, the Trust's administrators, investment adviser, distributor and
transfer agent, and each of their directors, trustees, officers, employees,
agents and each person, if any, who controls them within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"), against any losses,
claims, damages, liabilities or expenses to which an indemnitee may become
subject insofar as those losses, claims, damages, liabilities or expenses (or
actions in respect thereof) arise out of or are based upon (i) any orders that
are not timely transmitted by Administrator in accordance with Section 3 of this
Agreement or any trades that are cancelled by the Trust or its designee based
upon payments for purchases of Shares that are not timely wired; (ii)
Administrator's negligence or willful misconduct in performing the Services;
(iii) any breach by Administrator of any material representation, warranty or
covenant made in this Agreement; or (iv) any requests that are submitted by duly
authorized representatives of Administrator on behalf of Beneficiaries or
Customer Account Representatives for transaction adjustments (including, but not
limited to, the pricing of net purchases or net redemptions of Shares on an "as
of' basis). Administrator will reimburse the indemnities for any legal or other
expenses reasonably incurred, as incurred, by them in connection with
investigating or defending such losses, claims or actions.
11. ADDITIONAL REPRESENTATIONS. WARRANTIES AND COVENANTS. Each party
represents that (a) it is free to enter into this Agreement and that by doing so
it will not breach or otherwise impair
14
any other agreement or understanding with any other person, corporation or other
entity and (b) it has full power and authority under applicable law, and has
taken all action necessary, to enter into and perform this Agreement.
Administrator further represents, warrants and covenants that:
(i) it will not be a "fiduciary" of any Benefit Plan with respect to the
provision of the Administrative Services, the Services or with
respect to a Benefit Plan's purchase of Shares, as such term is
defined in Section 3(21) of ERISA, and Section 4975 of the Internal
Revenue Code of 1986, as amended (the "Code");
(ii) it, or its subsidiary that will perform functions under this
Agreement, is either registered as or not required under applicable
law to be registered as, a broker-dealer or a transfer agent
under the 1934 Act or any applicable state securities laws,
including as a result of entering into and performing the Services
set forth in this Agreement; and
(iii) it has adopted and implemented internal controls reasonably designed
to prevent instructions received from Beneficiaries or Customer
Account Representatives on a given Business Day after the Close of
Trading from being aggregated with the order for net purchases or
net redemptions of Shares for that Business Day.
The Trust further represents, warrants and covenants that the Trust is
registered as an investment company under the Investment Company Act of 1940, as
amended, and its Shares are registered under the Securities Act.
12. ABOUT VICTORY. The name "The Victory Portfolios" refers to the Trust
created under a Certificate of Trust filed at the office of the State Secretary
of Delaware. The obligations of "The Victory Portfolios" entered into in the
name or on behalf thereof by any of the Trustees, representatives or agents are
made not individually but in such capacities, and are not binding upon any of
the Trustees, Shareholders, representatives or agents of the Trust personally,
but bind only the Trust Property (as defined in the Trust Instrument), and all
persons dealing with any class of Shares ofthe Trust must look solely to the
Trust Property belonging to such class for the enforcement of any claims against
the Trust. The Trust has entered into this Agreement with respect to some or all
of its Funds individually, and not jointly. The rights and obligations of the
Trust described in this Agreement apply to each individual Fund. No Fund shall
have any liability for any costs or expenses incurred by any other Fund. In
seeking to enforce a claim against any Fund, Administrator shall look to the
assets only of that Fund and not to the assets of any other Fund.
THE VICTORY PORTFOLIOS
NAME: Xxxxxxxxxxx X. Xxxx
-------------------
TITLE: Secretary
---------
15
SCHEDULE A
The Services
Administrator shall perform the following services, all in accordance with the
terms of this Agreement:
1. Maintain separate records for each Customer Account, which records shall
reflect Shares purchased and redeemed, including the date and price for all
transactions, and Share balances.
2. Disburse or credit to the Customer Accounts, and maintain records of,
all proceeds of redemption of shares and all other distributions not reinvested
in Shares.
3. Prepare, and transmit to each Customer Account periodic account
statements showing the total number of Shares owned by each Customer Account as
of the statement closing date, purchases and redemptions of Shares by the
Customer Account during the period covered by the statement, and the dividends
and other distributions paid to the Customer Account during the statement period
(whether paid in cash or reinvested in Shares.)
4. Transmit to the Trust or its designee purchase orders and redemption
requests placed by Customer Accounts.
5. Transmit to the Trust or its designee such periodic reports as the Trust
shall reasonably conclude are necessary to enable the Trust to comply with
federal or state law requirements.
6. Transmit to the Benefit Plans confirmations of purchase orders and
redemption requests placed by the Customer Accounts.
7. Maintain all account balance information for the Customer Accounts and
daily and monthly purchase summaries expressed in Shares and dollar amounts.
8. Settle purchase order and redemption requests placed by Administrator on
behalf of the Customer Accounts in accordance with the terms of each Fund's
prospectus.
9. Prepare file or transmit all Federal, state and local government reports
and returns as required by law with respect to each account maintained on behalf
of a Customer Account.
16
Victory Capital Management Inc. 000
Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000
May 24, 2012
American United Life Insurance Company Xxx
Xxxxxxxx Xxxxxx
XX Xxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Dear Sir or Madam:
This letter is written in connection with your or your designees'
(collectively, "your") provision of recordkeeping services with respect to
certain retirement plans, which plans own shares of The Victory Portfolios. In
consideration of your providing such recordkeeping services, Victory Capital
Management Inc. agrees to pay you an annual administrative fee equal to 20 basis
points (.20%) of the average daily net asset value of assets for which you are
responsible in Class A and R shares of the investment companies described on
Attachment A. We anticipate that the fee will be computed monthly (on the basis
ofa 30/360 calculation) and paid monthly by the Victory Portfolios Administrator
and verified by a statement or invoice provided by you. Please note that all
account trades need to be done correctly for us to determine the most accurate
average daily net asset value. If trades were not done correctly, we will not go
back and pay in arrears any amount where the assets did not appear under the
appropriate broker dealer.
You will be responsible for compliance with all applicable laws, rules and
regulations governing your performance of services under this Agreement,
including but not limited to Reg. S-P, as adopted by the Securities and Exchange
Commission. You will adopt and maintain an anti-money laundering program in
compliance with applicable laws and regulations, including provisions for
necessary currency transaction reporting, detection of suspicious activities
that could give rise to money laundering, and knowing your customers.
You or we can terminate this Agreement at any time. However,
notwithstanding the termination of this agreement, Victory Capital Management
Inc. will continue to pay the fees in accordance with the first paragraph of
this Agreement, so long as you continue to provide recordkeeping services with
respect to any net assets of the Victory Portfolios as described in the previous
paragraph which remain invested in Victory. Notwithstanding any other provision
of this Agreement, Victory Capital Management's obligation to pay service fees
with respect to assets invested in a particular Fund shall terminate when
Victory Capital Management Inc. and its affiliates no longer act as investment
manager for such Fund. This Agreement is not assignable by you, except with our
written consent. We can immediately amend this letter at any time by giving
notice to you.
Page 2 of 3
Please acknowledge your agreement to the foregoing by signing the
duplicate copy of this letter and returning it to me.
Sincerely,
Victory Capital Management Inc.
By: Xxxxxxx Policarpco
Senior Manager Director
AGREED:
AMERICAN UNITED LIFE INSURANCE COMPANY
By: Xxxxx X. Xxxxx
Title: Assistant Vice President
Page 3 of 3
ATTACHMENT A
--------------------------------------------------------------------------------
FUNDS CUSIP SYMBOL
NUMBER
--------------------------------------------------------------------------------
Value FUND - A 926464868 SVLSX
--------------------------------------------------------------------------------
Value FUND - R 926464249 VVFGX
--------------------------------------------------------------------------------
Diversified Stock Fund - A 926464603 SRVEX
--------------------------------------------------------------------------------
!Diversified Stock Fund - R 926464421 GRINX
--------------------------------------------------------------------------------
Established Value Fund - A 926464231 VETAX
--------------------------------------------------------------------------------
Established Value Fund - R 926464371 GETGX
--------------------------------------------------------------------------------
Special Value Fund - A 926464843 SSVSX
--------------------------------------------------------------------------------
Special Value Fund - R 926464264 VSVGX
--------------------------------------------------------------------------------
Small Company Opportunity Fund - A 926464835 SSGSX
--------------------------------------------------------------------------------
Small Company Opportunity Fund - R 926464389 GOGFX
--------------------------------------------------------------------------------
Special Value Fund - A 926464843 SSVSX
--------------------------------------------------------------------------------
Special Value Fund - R 926464264 VSVGX
--------------------------------------------------------------------------------
Large Cap Growth Fund - A 00000X000 VFGAX
--------------------------------------------------------------------------------
fLarge Cap Growth Fund - R 00000X000 VFGRX
--------------------------------------------------------------------------------
International Fund - A 00000X000 VIAFX
--------------------------------------------------------------------------------
International Select Fund - A 00000X000 VISFX
--------------------------------------------------------------------------------
Global Equity - A 00000X000 VPGEX
--------------------------------------------------------------------------------
Investment Grade Convertible Fund - A 926464538 SBFCX
--------------------------------------------------------------------------------
Fund For Income - A 926464751 IPFIX
--------------------------------------------------------------------------------
Rule 22c-2 Agreement
This Agreement is entered into as of May 24, 2012, by and between The
Victory Portfolios (the "Trust"), on behalf of its series portfolios (each a
"Fund"), individually and not jointly, and American United Life Insurance
Company (the "Intermediary").
WHEREAS, each Fund is an issuer of redeemable securities; and
WHEREAS, the Intermediary submits orders to purchase or redeem securities
issued by one or more of the Funds directly to the Fund, its principal
underwriter or transfer agent, or to a registered clearing agency; and
WHEREAS, the Trust and the Intermediary desire to execute this Agreement in
compliance with Rule 22c-2 under the Investment Company Act of 1940, as amended
("Rule 22c-2").
NOW THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, the Trust and the Intermediary hereby
agree as follows:
1. Agreement to Provide Information. Intermediary agrees to provide the
Trust or its designated agent, promptly upon request, the taxpayer
identification number ("TIN") of all Shareholders (as defined below) that
purchased, redeemed, transferred, or exchanged Fund shares held through an
account with the Intermediary, and the amount and dates of such Shareholder
purchases, redemptions, transfers, and exchanges, during the period covered by
the request.
1.1. Indirect Intermediaries. Intermediary shall use its best
efforts to determine, promptly upon the request of the Fund or its designated
agent, whether any other person that holds Fund shares through the Intermediary
is itself a financial intermediary, as defined in Rule 22c-2 ("indirect
intermediary"), and, upon further request by the Trust, (A) provide (or arrange
to have provided) the information set forth above in Section 1 regarding
Shareholders who hold an account with an indirect intermediary, or (B) restrict
or prohibit the indirect intermediary from purchasing, on behalf of itself or
other persons, Fund shares.
1.2. Timing of Response. Intermediary agrees to transmit the
requested information that is on its books and records to the Trust or its
designated agent promptly, but in any event not later than ten (10) business
days after receipt of a request.
1.3. Limitations on the Use of Information. The Trust agrees not to
use the information received for marketing or any other similar purpose without
the prior written consent of the Intermediary.
2. Agreement to Restrict Trading. Intermediary agrees to execute written
instructions from the Trust or its designated agent to restrict or prohibit
further purchases or exchanges of Fund shares by a Shareholder that has been
identified by the Trust as having engaged in transactions of Fund shares
(directly or indirectly through the Intermediary's account)
that violate policies established by the Trust for the purposes of
eliminating or reducing any dilution of the value of the outstanding shares
issued by the Fund.
2.1. FORM OFLNSTRUCTIONS. Instructions shall include the TIN, if
known, and the specific restriction(s) to be executed. If the TIN is not known,
the instructions shall include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon information to which the
instructions relate.
2.2. TIMING OF RESPONSE. Intermediary agrees to execute instructions
as soon as reasonably practicable, but not later than five (5) business days
after the receipt of instructions by the Intermediary.
2.3. CONFIRMATION BY INTERMEDIARY. Intermediary shall provide
written confirmation to the Fund or its designated agent that instructions have
been executed. Intermediary agrees to provide confirmation as soon as reasonably
practicable, but not later than ten (10) business days after the instructions
have been executed.
3. EFFECT OF AGREEMENT. This Agreement, effective as of the date first
written above, supplements any and all existing agreements between the parties
hereto relating to the subject matter hereof. IN the event of any conflict
between this Agreement and any other agreement, this Agreement shall control.
4. DEFINITIONS. For purposes of this Agreement:
4.1. The term "Shareholder" means the beneficial owner of a Fund's
shares, whether the shares are held directly or by the Intermediary in nominee
name.
4.2. The term "written" includes electronic writings and facsimile
transmissions.
4.3. The term "business day" means each day the New York Stock
Exchange is open for business.
- 2 -
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first written above.
THE VICTORY PORTFOLIOS,
on behalf of its Funds
individually and not jointly
By: Xxxxxxxxxxx X. Xxxx
Secretary
INTERMEDIARY: AMERICAN UNITED LIFE INSURANCE COMPANY
Signed: Xxxxxxx X. Xxxxxx
Title: Associate General Counsel
- 3 -
